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Kidder v. Federal Bureau of Investigation

March 29, 2007

ELISABETH T. KIDDER, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

This matter is before the Court on plaintiff's and defendant's motions for summary judgment.*fn1 The Court will grant plaintiff's motion in part, and grant summary judgment for defendant with respect to materials withheld under Exemption 7(A).

I. BACKGROUND

Plaintiff submitted a request pursuant to the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552 (2002), to the United States Department of Justice ("DOJ"), Federal Bureau of Investigation ("FBI"), on January 8, 2005. Compl. ¶ 5. She requested the following information:

[All] records concerning Ahmed Abu Ali, the Falls Church, Virginia resident currently detained in Saudi Arabia. This request includes, but is not limited to: minutes of meetings, notes, correspondence, submissions, reports, memoranda, electronic mail, and staff calendars and appointment books.

Memorandum of Points and Authorities in Support of Plaintiff's Motion for Summary Judgment ("Pl.'s Mot."), Exhibit ("Ex.") A (FOIA Request Form). Because plaintiff sought information about another person, FBI staff returned the request because plaintiff had not included a privacy waiver from Mr. Abu Ali. Id., Ex. B (January 25, 2005 letter from D.M. Hardy, Section Chief, Record/Information Dissemination Section, Records Management Division). If any responsive records existed, the FBI asserted that they would be exempt from disclosure under FOIA Exemptions 6 and 7(C). Id. Plaintiff challenged the FBI's response by filing an administrative appeal with the DOJ's Office of Information and Privacy ("OIP"). Compl. ¶ 7 & Ex. C (February 2, 2005 Freedom of Information Appeal). The OIP failed to advise plaintiff of its decision on her appeal (assigned Appeal No. 05-1008) within the time period specified in 5 U.S.C. § 552(a)(6)(A)(ii). Id. ¶¶ 8-9.

Plaintiff filed her complaint in this action on May 10, 2005.*fn2 See Compl. at 1. By that time, Mr. Abu Ali had been indicted, publicly tried, and convicted. Defendants' Opposition to Plaintiff's Motion for Summary Judgment ("Defs.' Opp'n"), Ex. A ("Hardy Decl. I") ¶ 15.*fn3

Thus, "the FBI's role in investigating Mr. Abu Ali's case has been publicly acknowledged," and, for this reason, FBI staff concluded that "it was no longer necessary to neither confirm nor deny the existence of records relating to Mr. Abu Ali." Id. Accordingly, the FBI conducted a search for responsive records at its Washington, D.C. headquarters ("FBIHQ"). Id.

Searches conducted by the FBI yielded three sets of responsive records: two cross-references on Mr. Abu Ali, one Laboratory file, and one multi-volume file maintained by the FBI's Legal Attache in Riyadh, Saudi Arabia ("Legat Riyadh"). Defendants' Unopposed Motion for Extension of Time, Ex. A ("Hardy Decl. II") ¶ 7. On May 26, 2006, the FBI released 25 pages of these records "consisting of the two cross reference documents and the public source documents contained within the Laboratory file." Defendants' Status Report, Ex. A ("Hardy Decl. III") ¶ 6. The remaining documents in the Laboratory file were withheld in full under Exemption 7(A).*fn4 Id. Of the records contained in the Legat Riyadh file, the FBI released eight pages of public source documents on June 12, 2006, and withheld the remaining documents under Exemption 7(A).*fn5 Id. ¶ 7.

In this action, plaintiff demands the release of all the requested records in their entirety. See Compl. at 2-3 (Requested Relief).

II. DISCUSSION

A. Summary Judgment Standard

The Court may grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual assertions in the moving party's affidavits may be accepted as true, unless the opposing party submits his own affidavits or documentary evidence that contradict the movant's assertions. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992) (citing Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)).

To obtain summary judgment in a FOIA action, an agency must show, viewing the facts in the light most favorable to the requester, that there is no genuine issue of material fact with regard to the agency's compliance with the FOIA. Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (citing Weisberg v. United States Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984), reh'g denied, 763 F.2d 1436 (D.C. Cir. 1985)). The Court may award summary judgment based solely upon the information provided in affidavits or declarations when the affidavits or declarations describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith."*fn6 Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations "are accorded a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. Central Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

B. Plaintiff's Summary Judgment Motion

Defendant concedes plaintiff's two principal arguments -- that she exhausted her administrative remedies prior to filing the instant civil action and that defendant maintains records or portions of records responsive to her FOIA request. See Pl.'s Mot. at 5-7, 14-15 (addressing exhaustion of administrative remedies); Hardy Decl. I ¶¶ 21-22 (describing initial search results and intention to conduct manual search); Hardy Decl. II ¶ 7 (describing records located). If the Court's analysis stopped here, plaintiff's motion for summary judgment would be granted. However, plaintiff has not established that defendant wrongfully withheld responsive records. The Court therefore will address the appropriateness of FBIHQ's decision to withhold information in the context of defendant's motion for summary judgment.

C. Adequacy of Search

In determining the adequacy of a FOIA search, the Court is guided by principles of reasonableness. Oglesby v. United States Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). "An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.'" Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see Campbell v. United States Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998) (FOIA requires agency to conduct search using methods reasonably expected to produce requested information). The agency bears the burden of showing that its search was calculated to uncover all relevant documents. Steinberg, 23 F.3d at 551. To meet its burden, the agency may submit affidavits or declarations that explain in reasonable detail the scope and method of the agency's search. Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or declarations are sufficient to demonstrate an agency's compliance with the FOIA. Id. at 127. If the record "leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper." Truitt, 897 F.2d at 542.

1. FBIHQ's Searches for Responsive Records

In the Central Records System ("CRS"), the FBI maintains its "administrative, applicant, criminal, personnel, and other files compiled for law enforcement purposes." Hardy Decl. I ¶ 16. The records are organized by subject matter, and a file's subject matter may relate to an individual, organization, company, publication, activity, or foreign intelligence matter. Id. General indices, which consist of index cards arranged in alphabetical order, are the means by which CRS records are retrieved. Id. ¶ 17. Entries in the general indices are either "main" entries or "reference" entries. Id. ¶ 18. The former "carr[y] the name corresponding with a subject of a file contained in the CRS;" the latter "are generally only a mere mention or reference to an individual, organization, etc., contained in a document located in another 'main' file." Id. The decision to index names other than subjects, suspects, and victims is left to the discretion of the assigned Special Agent, the Supervisory Special Agent at the field office conducting the investigation, and the Supervisory Special Agent at FBIHQ. Id. ¶ 19. Without an index, "information essential to ongoing investigations could not be readily retrieved. The FBI files would thus be merely archival in nature and could not be effectively used to serve the mandated mission of the FBI." Id. ¶ 20. Thus, general indices to the CRS files "are the means by which the FBI can determine what retrievable information, if any," its files may contain on a particular subject. Id.

FBIHQ staff used Mr. Abu Ali's name, date of birth, and Social Security number as search terms. Hardy Decl. I ¶ 21. Although this search of the CRS records yielded no "main investigatory files responsive to plaintiff's request," it did yield "two cross references." Id. Because the search yielded fewer records than expected, id. ¶ 22, Litigation Support Unit ("LSU") staff "contacted the Washington Field Office case agent for the Ahmed Abu Ali investigation and obtained a list of individuals at FBIHQ who would likely have records responsive to plaintiff's request."*fn7 Statement of Points and Authorities in Support of Defendants' Motion for Summary Judgment ("Defs.' Mot."), Ex. A ("Hardy Decl. IV") ¶ 22. By electronic mail message on March 22, 2006, "each of these individuals was asked to conduct a manual search of their records for all records on Ahmed Abu Ali that would normally be uploaded or serialized into the [CRS] and submit all responsive records to the [LSU]." Id. These manual searches yielded one Laboratory file and one multi-volume file maintained by the Legat Riyadh. Id.; Hardy Decl. II ¶ 7. Because plaintiff directed her FOIA request to FBIHQ, neither the CRS search nor the manual searches encompassed FBI field office files. Hardy Decl. II, ¶ 7 n.3; Hardy Decl. IV ¶ 23.

2. Plaintiff's Challenges to the Adequacy of the FBIHQ's Searches

a. Ahmed Abu Ali's Aliases

Plaintiff argues that the FBIHQ's use of "Ahmed Abu Ali" as a search term is unreasonable under the circumstances, because the FBI has referred to Mr. Abu Ali as Ahmed Omer Abu Ali, Ahmad Abu-Ali, Ahmad Umar Abu-Ali, Ahmad Abu Omar Abu Ali, Ahmed Omer Mohammed Abu Ali, "Ali, Ahmed Abu," Souri, Ashraf, Al Abu Ali, and Ahmed Omer. Memorandum of Points and Authorities in Opposition to Defendants' Motion for Summary Judgment and in Further Support of Plaintiff's Motion for Summary Judgment ("Pl.'s ...


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